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Judgment
A.J. Desai, J.—Appellants in these Criminal Appeals were original accused in Sessions Case No. 91 of 2009 and they have been convicted for the offence punishable under Sections 399 and 402 of the Indian Penal Code and sentenced to undergo RI for 10 years and 7 years respectively and to pay a fine of Rs. 5,000/- and Rs. 3,000/- respectively and in default, to undergo further simple imprisonment of one year in both the offences, have filed these different Criminal Appeals u/s. 374(2) of the Code of Criminal Procedure.
Gordhan @ Gorsingh Virabhai Amliyar-Appellant of Criminal Appeal No. 1446 of 2010, is also convicted for the offence punishable u/s. 419 of the Indian Penal Code and has been sentenced to undergo one year RI and fine of Rs. 200/- and in default, to undergo SI for one month.
Samru @ Ramsu Nagubhai Meda-appellant of Criminal Appeal No. 1333 of 2010 is absconded since 28/01/2012 when he was released on temporary bail by this Court from 20/01/2012 to 27/01/2012.
Brief facts, arise from the record of the case, are as under:
It is the case of the prosecution that one Rajendrakumar Asari-P.W. No. 10 at Exh.58, who was Deputy Superintendent of Police, received a secret information that some persons were travelling in the Car, having registration No. GJ-6X 9608 with deadly weapons and with an intention to commit dacoity. He along with his police personnel patrolling on the Godhara-Dahod Highway Road, Nr. Gandhi Petrol Pump, as per the secret information, a Car was found coming from direction of Dahod. The Car was intercepted and seven persons were found in the Car. One country made tamancha was found from one of the accused and iron pipes and sticks were found from the dickey of the vehicle. The persons were arrested on the spot and Officers started investigation. After investigation, charge-sheet was filed in the Court of learned Chief Judicial Magistrate, Godhara, who in turn, committed the case to the learned Sessions Judge. The charges levelled against the accused persons were denied and trial proceeded further. The prosecution examined 11 witnesses and also produced several documentary evidence in the nature of arrest memo, FSL report, etc. Learned Sessions Judge, after examining the evidence on record, held that the appellants have committed offences punishable under Sections 399 and 402 of the Indian Penal Code and also held that Gordhan @ Gorsingh Virabhai-Appellant of Criminal Appeal No. 1446 of 2010, has committed an offence punishable u/s. 419 of the Indian Penal Code and sentenced, as stated hereinabove. Hence, the appellants have preferred these Criminal Appeals.
Learned advocates appearing on behalf of the appellants in each of the Criminal Appeals, have at the outset submitted that they do not challenge the conviction recorded by the trial court as well as do not pray for reduction in payment of fine imposed by the learned Session Court, however, they have prayed to reduce the sentence imposed by the learned Trial Court.
Mr. Soni, learned advocate appearing on behalf of the appellant has taken through the Court to the depositions of several witnesses and reasons assigned by the learned Trial Court for imposing sentence of 10 years RI and submitted that the sentence of 10 years RI and 7 years RI imposed by learned Sessions Court for the offence punishable u/s. 399 and 402 of the Indian Penal Code respectively, are on much higher side. It is submitted that the accused persons were found with weapons like country made tamancha, iron pipes and sticks, however, they have not used the same. Therefore, learned Trial Court ought not to have imposed sentence of 10 years RI. He submitted that even as per Panchnama at Exh.42, the country made tamancha was not loaded. It is submitted that there was no antecedent against the original accused. In support of their submissions, learned advocates appearing on behalf of the respective appellants have relied upon the decision of the Hon''ble Supreme Court rendered in the case of Birbal B. Chouhan and Another Vs. State of Chhattisgarh etc. etc., and submitted that Hon''ble Supreme Court has reduced the sentence imposed by the High Court in similar case from 5 years RI to 3 years RI.
By making above submissions and relying upon above decision it is requested that the sentence imposed by the learned Sessions Court may be reduced.
On the other hand, Mr. K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the respondent-State has submitted that the appellants have committed serious offence and, therefore, the sentence imposed by learned Trial Court does not call for any interference.
Heard learned advocates appearing on behalf of the respective parties. It is an admitted position that 7 persons were travelling in the Car in Highway when they were intercepted and from the dickey of the vehicle, iron pipes and sticks were found and a country made tamancha was found from one of the accused. It is also an admitted position that a country made tamancha was not loaded and only some cartridges were found from the pocket of one of the accused. It is also not the case of the prosecution that the appellants have any antecedents. Considering the aforesaid decision of the Hon''ble Supreme Court and taking into peculiar facts of the case, I am of the opinion that the sentence imposed by the learned Sessions Court is little bit harsh and required to be reduced and accordingly reduced. In view of the aforesaid facts and circumstances of the case, all the Criminal Appeals preferred by the appellants-original accused are partly allowed. The common judgement and order dated 19/07/2010 passed by learned Additional Sessions Judge, 1st Fast Track Court, Godhara in Sessions Case No. 91 of 2009 is hereby modified Conviction u/s. 399 of the Indian Penal Code and sentenced to undergo RI for 10 years is reduced to 4 years RI as well as conviction u/s. 402 of the Indian Penal Code and sentenced to undergo RI for 7 years is reduced to 3 years RI. Both the sentences are ordered to be run concurrently. Rest of the order shall remain the same. The appellants shall be released forthwith if they are not required to be detained in any other case.